Com. v. Perez, T., 1638 EDA 2016

Perez was convicted of attempted murder and related offenses and sentenced to 17½ to 35 years. His direct appeal and Pennsylvania Supreme Court allowance were denied in 2012.
Perez timely filed a PCRA petition in 2013; counsel was appointed, an amended petition and a supplemental petition were filed, and an evidentiary hearing occurred in February 2016.
Perez alleged (a) ineffective assistance by his first PCRA counsel for failing to raise trial counsel’s ineffectiveness regarding a hearsay ruling, and (b) ineffective assistance of direct appellate counsel for inadequately preserving and arguing the hearsay claim (including failure to cite controlling authority).
The PCRA court denied relief on April 25, 2016; Perez appealed to the Superior Court, which considered procedural bars and waiver issues.
The Superior Court concluded claims of PCRA counsel ineffectiveness raised for the first time on appeal are not reviewable under current precedent and that Perez’s remaining claim about direct-appeal counsel was waived for failure to raise it in the PCRA proceedings and in his Pa.R.A.P. 1925(b) statement.

Issue	Perez's Argument	Commonwealth's Argument	Held
Whether claims of former PCRA counsel ineffective assistance can be raised for the first time on appeal after PCRA denial	Pursell permits courts to address PCRA counsel ineffectiveness first raised on appeal because appellate review is the first opportunity	Post-Grant precedent limits raising such claims for the first time on appeal; they must be preserved below	Denied: under Grant/Ford/Henkel line, claims of PCRA counsel ineffectiveness cannot be raised for the first time on appeal
Whether PCRA counsel was ineffective for failing to allege trial counsel’s ineffectiveness re: hearsay preservation and controlling authority	PCRA counsel should have alleged trial counsel’s ineffectiveness and cited Farris/Thomas to preserve the hearsay argument	Not addressed on merits because claim was raised first on appeal and is procedurally barred	Not reviewed: claim declined as procedurally barred because it was first raised on appeal
Whether direct appellate counsel was ineffective for failing to properly present the hearsay claim and cite controlling cases	Direct appellate counsel ineffectively raised the hearsay claim and failed to cite controlling precedent, depriving Perez of relief	Claim not raised in PCRA petition, not litigated at the hearing, and omitted from Rule 1925(b) statement; thus waived	Waived: claim cannot be considered on this appeal; proper vehicle would be a subsequent PCRA petition

Commonwealth v. Pursell, 724 A.2d 293 (Pa. 1999) (held appellate courts could address PCRA counsel ineffectiveness first raised on appeal)
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (clarified that ineffective-assistance claims must generally be raised at the first available opportunity)
Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012) (held PCRA counsel ineffectiveness claims cannot be first raised on appeal absent a recognized constitutional right to effective collateral counsel)
Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super. 2014) (followed Ford, disallowing first-presentation PCRA-counsel ineffectiveness claims on appeal)
Commonwealth v. Santiago, 855 A.2d 682 (Pa. 2004) (barred raising new claims on appeal that were not included in the PCRA petition)
Commonwealth v. Farris, 380 A.2d 486 (Pa. Super. 1977) (hearings on admissibility/hearsay authority cited by Perez)
Commonwealth v. Thomas, 539 A.2d 829 (Pa. Super. 1988) (hearsay authority cited by Perez)